Joseph Salas v. Shelly Nelson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 4, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP454 Cir. Ct. No. 2021SC2813

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

JOSEPH SALAS,

PLAINTIFF-RESPONDENT,

V.

SHELLY NELSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Racine County:
JON E. FREDRICKSON, Judge. Affirmed.

¶1 NEUBAUER, J.1 Shelly Nelson appeals from a small claims
judgment entered in favor of Joseph Salas following a bench trial. Nelson

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP454

contends that the circuit court erred in not dismissing this action before trial, that
the court committed evidentiary errors during the trial, and that Salas brought the
action to harass her. Because Nelson has not identified a valid basis to disturb the
judgment, this court affirms.

¶2 Salas commenced this action in October 2021 alleging that he took
out a loan at Nelson’s request and that despite her promise to fully repay him the
principal and interest he owed under the loan, she only repaid him $100. The
circuit court held a bench trial after which it found that Nelson and her husband
had been unjustly enriched by receipt of the loan proceeds and entered judgment
against Nelson for the amount of Salas’s obligation under the loan agreement less
the partial payment, plus recoverable fees.

¶3 Before turning to Nelson’s arguments, this court notes that the
parties’ noncompliance with the Rules of Appellate Procedure has made the
court’s consideration of this appeal unnecessarily difficult. Nelson’s brief lacks
citations to the record and her arguments are not supported by citations to legal
authority. Her brief also omits a description of “the nature of the case” and “the
procedural status of the case leading up to the appeal,” all of which are required
under our rules. See WIS. STAT. RULE 809.19(1)(d), (e).2 Salas’s brief, which he
twice failed to file timely, also lacks citations to the record or relevant legal
authority.

2
The deficiencies in Nelson’s brief are particularly egregious because it is the second
brief that Nelson filed in this appeal. We rejected Nelson’s first brief because of its lack of record
citations and “other infirmities” and urged Nelson to “consult the Rules of Appellate Procedure
and Guide to Appellate Procedure for the Self-Represented previously sent from the clerk’s
office” to ensure compliance with WIS. STAT. RULE 809.19.

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No. 2022AP454

¶4 Though Salas and Nelson are proceeding pro se, they are still
obliged to follow the rules that govern appeals in Wisconsin. See Waushara
County. v. Graf, 166 Wis. 2d 442, 452, 480 N.W.2d 16 (1992). “The right to self-
representation is ‘[not] a license not to comply with relevant rules of procedural
and substantive law.’” Id. (quoting Faretta v. California, 422 U.S. 806, 834 n.46
(1975) (alteration in original)). This court is a high-volume court; compliance
with the Rules of Appellate Procedure, particularly those rules regarding accurate
record citation, is mandatory and essential to the court’s ability to timely perform
its duties. The parties are cautioned that future violations of our appellate rules
may result in sanctions. See WIS. STAT. RULE 809.83(2).

¶5 Notwithstanding the deficiencies in the parties’ briefs, this court will
address their arguments as best it can. But in doing so, this court is not obliged to
address undeveloped arguments, develop arguments on a party’s behalf, or search
the record for supporting evidence. See Industrial Risk Insurers v. American
Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82; Roy
v. St. Lukes Med. Ctr., 2007 WI App 218, ¶10 n.1, 305 Wis. 2d 658, 741 N.W.2d
256; United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not
like pigs, hunting for truffles buried in [the record].”).

¶6 Nelson first contends that the circuit court should have dismissed
this case before trial because Salas did not appear at two trial dates and did not
submit proof that his reasons for missing them were genuine. Salas admits to
these missed appearances, one of which he attributes to illness and the other to a
lack of transportation to the courthouse. The applicable small claims statute
provides that “[i]f the plaintiff fails to appear on the return date or on the date set
for trial, the court may enter a judgment for the defendant dismissing the action,
on motion of the defendant or on its own motion.” WIS. STAT. § 799.22(1).

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No. 2022AP454

The statute contemplates an exercise of discretion by the court if the plaintiff fails
to appear: it says that the court “may” dismiss the action, not that it “must” or
“shall” do so. See State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58,
¶36, 271 Wis. 2d 633, 681 N.W.2d 110. Accordingly, Nelson must show that the
court erroneously exercised its discretion in not dismissing the case.

¶7 Nelson has not done so. She has not directed this court to anything
in the record showing the circuit court’s reasons for not dismissing Salas’s case
after each of the two missed hearings. Nor has she explained why the circuit
court’s decision not to dismiss the case was an erroneous exercise of discretion.
“The law prefers, whenever reasonably possible, to afford litigants a day in court
and a trial on the issues.” Split Rock Hardwoods, Inc. v. Lumber Liquidators,
Inc., 2002 WI 66, ¶64, 253 Wis. 2d 238, 646 N.W.2d 19. Here, the court acted in
accordance with that well-established preference, and Nelson has not carried her
burden to show that that course of action was error. See Winters v. Winters, 2005
WI App 94, ¶18, 281 Wis. 2d 798, 699 N.W.2d 229 (“The burden to demonstrate
an erroneous exercise of discretion rests with the appellant.”).

¶8 Nelson next argues that the circuit court improperly allowed Salas to
present two third-party witnesses who lacked personal knowledge of any relevant
events. See WIS. STAT. § 906.02. This is not a basis for relief from this court.
Wisconsin’s law allows for a more informal presentation of evidence in small
claims matters and specifically exempts those proceedings from “the common law
or statutory rules of evidence.” WIS. STAT. § 799.209(2). Instead, the circuit court
is to “admit all … evidence having reasonable probative value.” Id. Here, the
circuit court was free to disregard any witness testimony that it did not deem
relevant. Nelson has not shown that the court’s admission of the third-party
witness testimony merits reversal of the judgment.

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No. 2022AP454

¶9 Nelson next argues that Salas did not introduce any evidence that she
received any money from him. As the appellant, Nelson was responsible for
ensuring that any transcripts necessary for the appeal were prepared and included
in the record. See WIS. STAT. RULE 809.11(4). She did not do so, apparently
because she believes the trial transcript contains no testimony relevant to the
issues she raises. This is plainly incorrect, however; in order to determine whether
Salas introduced the evidence she claims is missing, this court would have to
review the transcript. Because Nelson did not ensure that the transcript was
included in the record, this court must assume that it supports the circuit court’s
findings. See State v. Payette, 2008 WI App 106, ¶28 n.11, 313 Wis. 2d 39, 756
N.W.2d 423) (“This court assumes that information absent from the appellate
record supports the findings of the trial court.”).

¶10 Salas filed what appears to be a complete copy of the trial transcript
with this court on September 7, 2022. Though we are not obliged to consider it,
we note that it undermines Nelson’s argument. At trial, Salas testified that he
received the loan proceeds via a check from the loan company and that, some time
later, Nelson’s husband drove Salas to a liquor store in Kenosha where Salas
cashed the check and gave the money to Nelson’s husband. Salas also testified
that he had loaned Nelson money on other occasions but had not been repaid. A
neighbor of Salas and the Nelsons also testified that Nelson had admitted owing
Salas “several hundred dollars” that she did not intend to repay. For her part,
Nelson acknowledged being in the car when her husband drove Salas to cash the
loan check, but testified that she “[didn’t] know what transpired between the two
of them” and that she “did not receive anything.” She testified that Salas took out
the loan for himself “[b]ecause he didn’t have any money.” Nelson also denied
telling her neighbor that she owed Salas money.

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No. 2022AP454

¶11 The circuit court found Salas and the neighbor to be more credible
than Nelson and determined that Nelson and her husband acted jointly in driving
Salas to the liquor store and “benefited from the money and received the money”
Salas obtained through the loan. Though Nelson denied receiving the loan
proceeds, there was credible evidence from which the circuit court could find that
she had.3

¶12 Finally, Nelson contends that because she never received money
from Salas, he commenced this action solely for the purpose of harassing her.
This argument is also fatally undermined by Nelson’s failure to include the trial
transcript. Because we must presume that it supports the circuit court’s decision,
we must conclude that Salas’s claim had merit and was not brought solely to
harass Nelson. See Payette, 313 Wis. 2d 39, ¶28 n.11. But we would reach the
same conclusion even if we considered the copy of the transcript filed by Salas.
As noted above, the circuit court determined that Nelson and her husband had
acted jointly and together received the benefit of the loan proceeds. It also
determined that Nelson and her husband knew of and accepted the money under
circumstances in which it would be unjust to allow them to retain it without
repaying Salas. These are the elements of an unjust enrichment claim, Ulrich v.
Zemke, 2002 WI App 246, ¶10, 258 Wis. 2d 180, 654 N.W.2d 458, and the circuit
court concluded that Salas’s claim had merit. Nelson’s disagreement with the
court’s conclusion is not enough to warrant relief.

3
Nelson cites WIS. STAT. § 799.209(2), emphasizing the following language in that
provision: “An essential finding of fact may not be based solely on a declarant’s oral hearsay
statement unless it would be admissible under the rules of evidence.” But she fails to develop any
argument as to how this language provides a basis for setting aside the circuit court’s decision,
and thus we will not consider it. State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App.
1992) (court of appeals need not address undeveloped arguments).

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No. 2022AP454

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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